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Supreme Court investigation into the leak rages on as clerks are asked to obtain phone records in an unprecedented move

 

Some clerks seem so concerned about these moves, particularly sudden requests for private cellular data, that they have begun to explore whether an outside consultant should be hired.

The court’s actions are unprecedented and the most striking development to date in the investigation into who could have provided Politico with the draft opinion it published on May 2. To roll back half a century of abortion rights and protect privacy.

CNN has learned Chief Justice John Roberts met with legal staff as a group after the breach, but it is not known if any regular one-on-one interviews took place.

Lawyers out of court who became aware of new inquiries about cell phone details are warning of potential interference in employees’ personal activities, regardless of any disclosure to the media, and say they may feel the need to seek independent counsel.

“This is what individuals in a similar situation would do in almost any other government investigation,” said one appellate attorney with experience in investigations and knowledge of the new demands for law officers. “It would be hypocritical for the Supreme Court to prevent its employees from benefiting from that basic legal protection.”

Sources familiar with the ongoing efforts say the exact language of the statements or the intended scope of the cell phone search — the content or time period it covers — is not yet clear.

The Supreme Court did not respond to CNN’s request Monday for comment on the phone searches and affidavits.

Young lawyers who are selected to be legal clerks each year are considered the elite of the elite. (Each judge usually hires four.) They are overwhelmingly graduates of Ivy League law schools and had previous training with notable US appeals court judges.

Their one-year service becomes a golden ticket for prestigious law firms or senior government or professorial positions. Six of the nine current Supreme Court justices are former clerks.

The heightened scrutiny of law officials reflects Roberts’ concerns about breaches of confidentiality and possibly more leaks. He also notes that the court has so far not succeeded in identifying the source of Politico.

Roberts ordered the investigation on May 3, appointing a court marshal, Jill Curley, to lead the investigation.

Supreme Court privacy versus your right to privacy

Curley, a lawyer and former Army colonel, supervises the police officers on the premises. She is best known to the audience as the one who chant, “Oyez! Oyez! Oyez!” At the beginning of the oral debate sessions of the judges. A marshal’s office would not normally check cell phone data details or engage in a large-scale investigation of employees.

The investigation comes at the busiest time of the court’s annual session, when relations between judges are already strained. With the help of law clerks, judges are pressing toward deadlines in late June, trying to resolve disagreements on the toughest cases, all with new pressure and public scrutiny.

Due to protests and security concerns related to the Mississippi abortion issue, the courthouse is surrounded by a non-expandable 8-foot-high fence and concrete barriers.

The justices are also working to resolve a dispute in New York that, based on their observations during oral arguments in November, could extend Second Amendment protections to gun owners. In addition, the court can lower the wall between church and state by allowing some prayer in public schools and requiring public vouchers for religious institutions.

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The draft opinion was written in the Dobbs v. Jackson Health Organization by Judge Samuel Alito and appears to have a five-judge majority to overturn Roe v. Wade for 1973 altogether. This landmark ruling made abortion legal nationwide and supported other privacy interests not expressly provided for in the Constitution. Some law professors have warned that if Roe’s case is reversed, the 2015 Supreme Court ruling declaring a constitutional right to same-sex marriage could be in jeopardy.

The publication of Alito’s draft opinion has already sparked national protests and a duel in the state’s legislative efforts – to further eliminate all options for women seeking to terminate a pregnancy or, alternatively, to try to protect women’s access to abortion where possible.

But it’s hard for anyone outside the building to tell whether Alito’s draft still has a majority in a court deeply divided on abortion rights and divided over how quickly to reverse the precedent.

secret group audit

As the judges continue their secret negotiations, the scrutiny of law clerks is intensifying.

The scribes have been the subject of much outside speculation about who may have revealed the draft, but they are not the only insiders who have had access to it. Alito’s opinion, named in the first draft and dated February 10, was to be circulated to the nine justices, their clerks, and key staff within each justice’s chambers and selected administrative offices.

Behind the scenes at the Secret Supreme Court

If tradition is followed, copies are sent electronically, and separately, printed and hand delivered to the chambers by the marshal’s assistants.

Other employees associated with the nine rooms had some access to the view. CNN has not been able to verify that number, but former legal clerks say the document could have been sent through regular channels to approximately 75 people. It is not known if court officials ask employees who are part of the permanent staff, other than one-year law clerks, for their phone records.

Cell phones, of course, contain a huge amount of information, related to personal interactions, which includes all kinds of content, text and images, as well as the applications used. It is uncertain whether details associated only with calls will be searched or if a broader retrieval will occur.

There are protocols for dealing with draft court opinions, which are circulated electronically on a closed system, separate from the computer system that judges and court staff use to communicate with people outside the court. However, it is possible for the printouts to leave the building even under innocent conditions, as the work is taken home.

Court officials are confidential even in normal times. No progress reports regarding the investigation into the leak have been made public, and it is not clear if any report from the investigation will be made public.

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